Delhi District Court
State vs 1. Ajay Kumar @ Lotiya on 21 September, 2007
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IN THE COURT OF SH. V.K.BANSAL:
ADDL. SESSIONS JUDGE:
NEW DELHI
IN SESSION CASE NO 28/02
State Versus 1. Ajay Kumar @ Lotiya
s/o Shiv Balak
r/o Jhuggi A 1-711,
JJ Colony,
Madanpur khadar
New Delhi
2. Ravi s/o Ram Avtar
r/o Jhuggi no A2-1227
JJ Colony
Madanpur khadar New Delhi
3. Ashok Kumar Mandal
s/o Triveni Mandal
r/o A-Z/48, JJ Colony
Madanpur khadar New Delhi
4. Sunil Kumar s/o Om Prakash
r/o H.No. A2-850, J.J.
Colony, Mandanpur Khadar
New Delhi.
5. Sunil Kumar Bhoma
s/o Nand Ram
(Juvenile: Tried separately by
Juvenile Justice Board)
FIR no 60/02
PS Lajpat Nagar
u/s 147/148/353/307/323
of IPC
and 27/54/59 Arms Act
JUDGMENT
On 24/1/2002 ct. Mohd. Abdula and ct.
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Natarpal both posted in police station Lajpat Nagar were on patrolling . At about 8 p.m they were going through DDA forest situated on the back side of the Sant Nagar towards Nehru Nagar. At a distance of 15-20 steps from the track near the electricity pole, they saw some boys sitting. They went to them on seeing the police all the boys stood up. Constables inquired from them as to why they gathered there but they were not able to give any satisfactory reply in the mean while three boys took out the knives. When Constables tried to overpower them the remaining boys caught hold of them . Ct. Mohd. Abdulla gave danda blow to them on which one of the boy exhorted loudly " inka kam khatam kar do nahi to pakdey ja aye gay". Those boys attacked them with knives. They were badly injured . They came out on the road and reached Eden Hospital by three wheeler scooter from there Doctor sent them to AIIMS Hospital by CATS Van. The case was registered. Clothes of injured persons were seized. Accused persons were arrested. Other accused persons were also arrested. After completion of investigation chargesheet against the accused persons was filed. ld. M.M after complying with the provisions of Sec 207 of Cr.P.C committed the case to the Sessions Court as the offence punishable u/s 307 of IPC is exclusively triable by the Sessions Court. Accused persons were charged for the
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offence punishable u/s 147/148/149/186/353 and 307 r.w.sec 147/148/149 of IPC. Accused Ajay Lotiya was also charged for the offence punishable u/s 27 Arms Act. All accused persons pleaded not guilty and claimed trial. Thereafter case was fixed for prosecution evidence.
Prosecution in order to prove the guilt of the accused persons examined 16 witnesses. Thereafter prosecution evidence was closed. Statement of accused persons were recorded u/s 313 Cr.P.C wherein they stated that they have been falsely implicated. It is alleged that police arrested 60 persons including them and police demanded money from them but they being poor they could not pay the demanded money and falsely implicated in this case. They wished to lead evidence in their defence and examined DW1 Rajinder Singh, DW2 Hari Narayan Singh and DW3 Vijender Singh and thereafter defence evidence was closed. The case was fixed for arguments.
I have heard the ld. Addl.P.P for State, ld. Defence counsel for the accused and perused the record.
ld. Addl.P.P submitted that in the present case the injured Ct. Nater Pal and the complainant Ct. Mohd.
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Abdulla have been examined by the prosecution as PW1 and PW4. Both of them have fully supported the prosecution case. There are minor contradiction but those are bound to occur due to delay in recording of the evidence. PW1 has identified all the accused persons and have stated that they are the boys who attacked him as well as PW 4 with the knives. PW1 had identified accused Ravi and Sunil as accused who were having knives. PW4 identified Ajay as a person who was having ustra in his hand . The fact that they had sustained injuries from the sharp edged weapon is also clear from the MLCs which are Ex PW8/A and Ex PW11/A. In both the MLC it is clear that injuries were sharp in nature. ld. Addl. P.P further submits that during the investigation accused Ajay Lotiya was arrested and from his possession one ustra was also recovered which was used as weapon by him at the time of commission of offence. ld. Addl.P.P submitted infact there were more than five persons as had come in the testimony of PW1 and PW4 they all formed unlawful assembly and attacked the constables. PW1 and PW4 who were on patrolling duty and discharging their duties as such, they on suspicion went to the accused persons who were sitting on the bench in the DDA forest. They made inquiries from them and as the accused persons are not able to give any satisfactory reply they tried to took
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their search on which they were attacked. Ld. Addl. P.P submitted that the accused persons have acted infutherance of their common intention and attacked both the constables which is evident from the testimonies of PW1 and PW4 that all the accused persons attacked them and when they raised alarm they fled away.
ld. Defence counsel for the accused persons submitted that there are many contradictions in the testimony of witnesses. They have also improved a lot . ld. Counsel submitted that the accused persons were charged u/s 147/148/149 of IPC as according to the prosecution story they have made unlawful assembly to commit some illegal act but PW1 in his cross examination on 27/8/2002 had specifically stated that only 4 accused persons present in the court were involved in attacking him. There is nothing on record that there were more persons there for making an unlawful assembly . There must be 5 or more than 5 persons but here in this case there are only 4 boys and hence sections 147/148/149 are not attracted.
ld. Defence counsel submitted that according to the complaint to the police Ex PW4/A which was recorded on the statement of Ct. Abdulla PW4 that the three accused persons took out the knives and attacked them but interestingly when PW4 appeared in the witness box he
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stated that two were having knives i.e. Sunil and Ravi and accused Ajay was having ustra. This statement is made by PW4 only to fit the ustra which is alleged to have been recovered from accused Ajay. ld. Counsel submitted that PW1 and PW4 contradicted each other as according to PW1 Ravi and Ajay were having knives whereas according to PW4 Sunil had knives and Ajay was having ustra. According to him Ashok was not having any weapon in his hand. PW1 had also stated that out of the assailants only two were having the knives in the cross examination by ld. Counsel for the accused Ashok . He had stated that Ashok and Sunil caught hold of him while he was given knife blows . He denied the suggestion that three boys were having knives in their hands. ld. Counsel further submitted that according to Ex PW4/A Ct. Mohd. Abdulla PW4 mentioned in his complaint that when the boys caught hold of him he got himself freed and gave a blow with danda which he was having in his hand. One boy exhorted to kill them but PW4 specifically stated in his cross examination that he had not gave any danda blow to any of the accused persons . He had stated that " I could not use the wooden rod on any of the accused person as all the accused person had grabbed me"
ld. Counsel further submitted that according to the witness PW4 he jumped over the wall of DDA Park and then got the
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TSR and went to hospital. ld. Counsel submitted that in that area the height of the wall is 10 feet and it is not possible for a human being to scale the wall of 10 feet without any help and jump over the other side even otherwise on that road there is no vecular traffic and they could not have got any TSR. It is submitted that it is a false story infact all the accused persons were lifted from their respective houses and falsely implicated in this case. According to the story this incident had taken place in the jungle. Site plan also shows that this incident had taken place in the jungle at point A. There was no electric pole. There could not be visibility in the month of January at about 7.30 or 7.45 p.m in the jungle. ld. Counsel submitted that due to the darkness PW1 and PW4 have not seen faces of the accused persons . In fact police lifted many boys took money from them but as the accused persons were not having sufficient money to pay to the police they were falsely implicated in this case. It is prayed that keeping in view the contradictions in the testimony of Pws accused persons be acquitted giving benefit of doubt to them.
After hearing the arguments and going through the record I found that both the witnesses are consistent on the point that they were on patrolling duty at that time. They were passing through the park at about 7.30 or 7.45
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p.m. They saw some boys sitting in the park. They made inquiries from them but those boys were not able to give any satisfactory reply . They have further stated that due to suspicion they tried to took there search on which the accused persons took out the knives and attacked them. It has come on record that there were 4-5 boys sitting in the park. During the cross examination also it has come that there were 5 boys and only two were having knives as has come in the testimony of PW1. PW4 stated that there were 5 boys and three were armed , two were having knives and one was having ustra. It is pertinent to mention here that there were 5 boys , four are facing trial here and fifth one namely Sunil Kumar s/o Om Prakash who was juvenile is facing trial before the Juvenile Justice Board. Keeping in view all these facts in my opinion as the accused persons were five, they were also armed with weapon and had collected there for illegal activity after being armed with the weapon . They formed an unlawful assembly . It has come in the testimony of PW1 and PW4 that the three accused persons namely Ajay, Ravi and Sunil were armed with weapons. So far as contradiction in the testimony of PW1 and PW4 are concerned record shows that there are contradictions about the minor details but those are bound to occur as the two were attacked by the accused persons simultaneously and
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under these situations they were able see and recollect which happened to each of them and perceived by individual resulting into contradictions. ld. Counsel stressed on the point of ustra but in my opinion that does not make a difference as ustra and knife both are sharp edged weapons and it is difficult to pinpoint the same when the quarrel was going on as to what was the weapon. No doubt in the complaint Ex PW4/A it is mentioned that three boys took out the knives whereas PW1 when appeared in the witness box stated that two boys were having knives and one boy was having ustra. In my opinion it is not such a fact on which entire story of the prosecution is to be disbelieved.
So far as the contradiction about the accused persons who was having the knife and who was having the ustra. The two witnesses have contradicted each other on this point. PW1 has stated that Ajay and Ravi were having the knives whereas PW4 stated that Ajay was having Ustra and Ravi and Sunil were having knives but in my opinion this also does not go to the root of the matter and the testimonies of these two cannot be discarded simply on the basis of this contradiction when on all other aspects they supported each other.
So far as contradiction about the use of stick by Ct . Mohd Abdulla is concerned it has come in the complaint
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Ex PW4/A that Ct Mohd Abdulla attacked those boys with that stick but when he appeared in the witness box he stated that he could not use the danda as all the accused persons had grappled with him. It is neither in the complaint Ex. PW4/A that he hit some of the accused persons with the danda or any of the accused was hit with the danda. He has also not stated so in his deposition before the court. Only contradiction is whether he tried to hit any of the accused or not that in my opinion does not go to the root of the case and, therefore, is not fatal to the prosecution case.
ld. Counsel for accused also stressed on the point that there was no light at the place of incident and therefore witness PW1 and PW4 were not in a position to see the faces of accused persons. The police had apprehended them in this case only to solve the case . It has come in the testimony of PW1 and PW4 that there was electric pole near the spot from which the light was coming. In the site plan Ex PW7/F the IO had specifically mentioned that there was an electric pole near the spot . It is mentioned in the site plan that at point A near the electric pole is the place where boys were sitting and incident has taken place. Therefore, I do not find merit in the contention that there was no electric pole at the spot and that is why it was not shown in the site plan . Keeping in view the evidence in my
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opinion as there was light from the electric pole , there was visibility whereby the witnesses PW1 and PW4 were able to see the assailants the facts that the witnesses were able to see the assailants is also evident from the complaint Ex PW4/A where PW4 has given the description of the accused persons.
So far as the contention of false implication is concerned in my opinion the injuries on the person of PW1 and PW4 itself shows that those were not self inflicted and they have been assaulted by somebody else . I fail to understand why the constables PW1 and PW4 would depose against the accused persons whom they were not knowing before and having no enmity or reason falsely implicate in this case leaving the actual culprit scot free. I do not find any merit in the contention. In the present case as pointed above the witnesses PW1 and PW4 were assaulted by the accused persons herein and one Sunil Kumar s/o Om Prakash who is juvenile. Three of five were armed with weapon . They have attacked the police constables while they were on patrolling duty and on suspicion they asked the accused persons to give their search and when they tried to took their search they were attacked by them from this testimony it is clear that PW1 and PW4 were discharging their official duties at the relevant time and on suspicion they
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had asked the accused persons to give their search. All the accused persons obstructed them from discharging their duty in order to prevent them for discharging their duties . They were armed with the weapon and they also attacked to kill the constables PW1 and PW4 in furtherance of the common intention of that unlawful assembly. Accused Ajay Kumar was also found in possession of ustra when he was apprehended. The ustra is sharp edged weapon and it falls within the category of weapon which is prohibited to be kept in possession . So far as the recovery is concerned no doubt no public witness was joined when he was apprehended by the police personnel and in whose presence ustra was recovered. In my opinion their testimony cannot be discarded simply because that they are police official when even otherwise their testimony inspires confidence.
So far as the offence u/s 186 of IPC is concerned it is well settled principle law that for taking cognizance of offence punishable u/s 186 of IPC the complainant u/s 195 Cr.P.C is required . The record shows that the complaint u/s 195 Cr.P.C is tagged with the file but mere tagging of complaint with the charge sheet is not sufficient . The requirement of law is that the cognizance is taken on the basis of complaint and not on the police challan even otherwise the complaint u/s 195 Cr.P.C is not proved
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neither the complainant Sanjay nor any other person which can identified his signature can be examined . Therefore , in my opinion so far as section 186 of IPC is concerned as the cognizance itself, accused persons cannot be held guilty u/s 186 of IPC.
The offences punishable u/s 186 and 353 are two separate offences and even if the accused are acquitted or discharged for want of complaint u/s 195 Cr.P.C it does not effect section 353 as there is no such bar for taking cognizance of offence punishable u/s 353 of Cr.P.C as laid down in case titled Durgacharan Naik Vs. State of Orissa AIR 1966 Supreme Court 1775. Keeping in view the above discussion I am of the opinion that all the accused persons with their co-accused Sunil Kumar s/o Om Prakash Juvenile formed unlawful assembly out of which three accused namely Ajay, Ravi and Sunil were armed with deadly weapon . They attacked PW1 and PW4 with their knives and other accused caught hold of them at that time. They attacked both the constables in order to murder them and caused stab wound. The injuries had been caused to deter the constables who were on patrolling duty and also discharging their duties as police official as such so that they may no be able to discharge their duties.
Keeping in view all these facts I am of the
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opinion prosecution has fully established its case. I, therefore, hold all the accused persons guilty for the offence punishable u/s 147/148/149/353 r.w.sec 149 and 307 r.w.sec 149 of IPC.
Announced in open court (V.K.BANSAL)
On 17.09.2007 ADDL.SESSIONS JUDGE;
NEW DELHI
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IN THE COURT OF SH. V.K.BANSAL:
ADDL. SESSIONS JUDGE:
NEW DELHI
IN SESSION CASE NO 28/02
State Versus 1. Ajay Kumar @ Lotiya
s/o Shiv Balak
r/o Jhuggi A 1-711,
JJ Colony,
Madanpur khadar
New Delhi
2. Ravi s/o Ram Avtar
r/o Jhuggi no A2-1227
JJ Colony
Madanpur khadar New Delhi
3. Ashok Kumar Mandal
s/o Triveni Mandal
r/o A-Z/48, JJ Colony
Madanpur khadar New Delhi
4. Sunil Kumar s/o Om Prakash
r/o H.No. A2-850, J.J.
Colony, Mandanpur Khadar
New Delhi.
5. Sunil Kumar Bhoma
s/o Nand Ram
(Juvenile: Tried separately by
Juvenile Justice Board)
FIR no 60/02
PS Lajpat Nagar
u/s 147/148/353/307/323
of IPC
and 27/54/59 Arms Act
ORDER ON SENTENCE
Sh Ahmad Khan Addl. P.P for the state.
Convicts Ajay Kumar and Ravi produced from
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JC.
Convicts Ashok Kumar and Sunil on court bail. Sh D.K. Sharma defence counsel for convicts. Ld Addl. P.P for the state submitted that all the convicts assaulted the police personnels when they were taking search of the convicts under suspicion. They caught hold of the police personnels and stabbed them repeatedly. The intention was clear to kill them and not allow them to carry out the search. It is prayed that keeping in view the conduct of the convicts exemplanary sentence be given to them so that they may not commit any such offence in future and the other persons may also take a lesson.
Ld defence counsel for the convicts submitted that the convicts have no previous criminal records. They have clear antecedents. All are of young age having entire future before them. All the convicts are now married except convict Ajay Lotiya and prayed that a lenient view may kindly be taken.
Keeping in view the submissions and the facts all the convicts are sentenced to undergo Six Months SI for the offence punishable under sec. 147 IPC. They are further sentenced to undergo One year RI for the offence punishable under sec. 148 IPC. Convicts are also sentenced to undergo One Year RI for the offence punishable Under sec. 353 read with sec. 149 IPC and are further sentenced to Three Years RI for the offence punishable under sec. 307 read with sec. 149 IPC with fine of Rs 500/- in default to undergo 15 days SI. Benefit of section 428 Cr. P.C is given to the convicts. All the sentences shall run concurrently.
File be consigned to record room.
Announced in open court (V.K.BANSAL)
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On 21.09.2007 ADDL.SESSIONS JUDGE;
NEW DELHI